Monday, December 20, 2010

I haven't written about the Smithsonian controversy because it isn't really a legal dispute, but here's a small legal angle: last week artist AA Bronson asked the museum to remove his work from the show in protest. They refused. Today he follows up with an email saying:

"My lawyer suggests that, according to my moral rights under copyright law in both Canada and the U.S.A., I have the right to withdraw my work from ‘Hide/Seek.'"

I don't know anything about Canadian moral rights law (or why it would apply to an exhibition in Washington), but under U.S. law, the obvious stumbling block is VARA's "public presentation" exception ("The modification of a work of visual art which is the result of ... the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification" under the statute).

UPDATE: Sergio agrees: "We’re not sure about the Canadian moral rights law, but it does not seem to us that under the 1990 Visual Artists Rights Act the NPG would be violating Bronson’s moral rights simply by exhibiting the work within a context and/or exhibition that Bronson did not like or approve of. If this were the case, artists could dictate–and ironically–censor the speech of individuals whom they did not identify with ideologically. Interesting move though."

Friday, December 10, 2010

"Picasso was exceedingly generous with his work, but he never gave away anything from earlier periods, always from whatever he was working on at the time and available in the studio. Also, when he gave someone a drawing or a print, he always signed and also inscribed it. Of the 271 works said to be in Le Guennec’s cache, reportedly only one of them bears the artist’s signature, and none of them is inscribed."

Also:

"The Le Guennec affair puts me in mind of the large collection of works, mostly on paper and mostly executed at the end of the artist’s life, belonging to the heir of his driver, Maurice Bresnu, which appeared on the market in the 1990s. Bresnu (nicknamed 'Nounours') and his wife endeared themselves to the Picassos. At first mistakenly thought to have been fakes and, later, to have been stolen—only a fraction had been inscribed—they were ultimately O.K.’d by the Picasso administration and put up for sale at Christie’s (November 19, 1998). It will be interesting to see how the Picasso administration, not to mention the French judiciary, reacts in this new, far graver case."

Wednesday, December 08, 2010

One further thought prompted by the story earlier this week about deaccessioning at the Philadelphia History Museum. As I mentioned, one museum director is quoted as making the usual slippery slope argument against deaccessioning: "if we go down this road, we end up paying our gas, electric and water bills — classic operations costs — with deaccessioning proceeds."

Can I make a suggestion?

If you're worried about paying your gas, electric, and water bills with deaccessioning proceeds ... don't pay your gas, electric, and water bills with deaccessioning proceeds. That is, we can easily have a rule that says you can use deaccessioning proceeds to pay for educational programs or building renovations or major capital projects or any number of things, but at the same time say (if we want to) that you can't use deaccessioning proceeds to pay for gas, electric, and water bills.

Problem solved. The slope really isn't that slippery. You just have to plow the roads now and then.

In fact, that's pretty close to the situation we have now. Works can be (and quite frequently are) sold for one purpose -- to raise acquisition funds -- and no one goes around worrying that, if we go down this road, we'll end up paying our gas, electric and water bills with deaccessioning proceeds. People understand that you don't have to slide down the slope. You can just stop. There's no reason we couldn't add other acceptable reasons (like, for example, keeping from having to close your doors) to the list.

Monday, December 06, 2010

The New York Times had another front page story on deaccessioning today -- this time involving the Philadelphia History Museum, which has "quietly" sold more than 2,000 objects "over the last several years," to help raise money for a big renovation of its 1826 building.

You get the usual staking out of positions. The director of the Institute of Museum Ethics at Seton Hall University says: "Museums really cannot continue to accumulate and accumulate and accumulate ad infinitum. What does one do with former acquisitions policies that did not make sense, or not having an acquisitions policy, or having so many objects they can’t care for or don’t really fit within their purpose?" While, on the other side, the director of another local museum says it "rapidly" (rapidly!) becomes a slippery slope: "if we go down this road, we end up paying our gas, electric and water bills — classic operations costs — with deaccessioning proceeds."

I would just note that the Deaccession Police have no way of distinguishing this case from sales by the National Academy or the Rose or any other art museum. If museums hold their collections in "the public trust" (albeit a trust museums feel themselves completely free to invade any time they want to use the proceeds to buy more work -- but leave that aside for the moment), then it's every bit as wrong for this museum to sell its cigar store Indians as it is for the Rose to sell its Warhol. They have no theory to distinguish the one case from the other. But if they allow that these particular sales aren't so bad, then the whole argument for the repulsiveness of deaccessioning falls apart. We might have to start trusting the people who run our museums to make the hard choices and do what's best for their institutions, all things considered. A shocking thought, I know, but I think they just might be up to it.

The Association for Research into Crimes against Art (ARCA) is now accepting applications for its MA Program in the Study of Art Crime and Cultural Heritage Protection. Applications are due Jan. 3, so get on it. For more details, see here.

Sunday, December 05, 2010

Halsey Minor is appealing the summary judgment ruling in favor of Sotheby's in their breach of contract action against him. You can read the appellate brief here. I discussed the lower court ruling here. Further background here and here.

Fisk is appealing the latest ruling in the litigation concerning the Stieglitz Collection. Jennifer Brooks has the story in the Nashville Tennessean. The New York Times is here. (As an aside, the Times story states, as a fact, almost in passing, that the Collection was "given to [Fisk] as a public trust by the artist Georgia O’Keeffe." What does that even mean? How do you give something "as a public trust"? Doesn't that assume an answer to a central issue in the case?)

You will recall that Judge Lyle allowed the Crystal Bridges deal to go through, but ruled that Fisk could keep only $10 million of the $30 million in sales proceeds. The other $20 million had to go to an endowment fund dedicated to support of the Collection. Fisk President Hazel O'Leary says the annual cost of maintaining the Collection is $130,000 and, if you assume $1 million in income from the $20 million endowment, that's $870,000 that could be used "for educational purposes, to attract high quality scholars and researchers to the faculty, to provide scholarships to [students], or to maintain the many historic buildings which require constant repairs on our campus."

The school adds that in 2008 they spent about $1 million to upgrade the gallery that houses the works and that Crystal Bridges's Alice Walton "has contractually agreed ... to establish a million dollar endowment" to care for the Collection. (The sharing agreement, in and of itself, also provides Crystal Bridges with great incentive to make sure the works are properly cared for.)

The Tennessee AG's office says bring it on ("We welcome the opportunity to urge the court of appeals to fashion a solution … that will fulfill the donor's intent and keep the Stieglitz Collection in Nashville and available to Fisk students full-time"), which points up the risk Fisk is taking in filing the appeal. They could lose the $10 million and end up with nothing.

Wednesday, December 01, 2010

I'm taking my talents to South Beach this afternoon (I can't believe I actually got to use that line on the blog!), where I will be part of this panel tomorrow, so blogging will be light (or non-existent) through the weekend. Hopefully, British museums won't sell off thousands of works while I'm gone. (There's nothing stopping them from doing so, you know.)

Tuesday, November 30, 2010

Another really interesting story from over the weekend: a 71-year old retired electrician seems to have ended up with nearly 300 works by Picasso. He claims they were a gift from the artist. The Picasso estate has filed a lawsuit in France, claiming the works were stolen.

"The man worked for Picasso in the 1970s and this could create a fascinating contest over credibility if [he] has no written record. The absence of any prior disclosure certainly makes the claim somewhat suspicious. Such cases can become the ultimate jury question — with members looking at the practices of the artist. It is quite common for many artists to give away their works, even as payment for services. This number of paintings, however, would represent a lot of work or a lot of friendship. . . . Picasso died a few years later and was already an international superstar in the art field. This was not some starving painter trading paintings for baguettes. Moreover, it is hard to see how much of a friendship could have developed over the course of the installation of a security system. Of course, there is always the possibility that Picasso was simply eccentric and a bit daffy in his final years. Anyway it goes, it should make for an interesting tort or criminal case or both."

Monday, November 29, 2010

Lots to catch up on after the holiday weekend -- most interesting, from my point of view, this article in The Art Newspaper. The lede is that "leading international museum directors" have "restated their opposition" to sales from public collections "when the proceeds are used for 'anything other than acquisitions or the direct care of the collection.'" But the really interesting news is further down:

1. First, we learn that "the UK Museums Association (MA) has relaxed its ethical stance from a hard-line presumption against disposal to one that accepts that works of art might be sacrificed for the greater good of a collection. 'The basic principle of museums in exceptional circumstances liquidating their collections is a principle that we have embraced since 2007,' said Maurice Davies, the MA’s head of policy, 'and the world hasn’t come to an end.'"

This strikes me as enormously important, for at least two reasons.

One, the anti-deaccessionists in the U.S. have turned the debate into a moral crusade. The idea that "works of art might be sacrificed for the greater good of a collection" is not just mistaken, it's repulsive. Stalinist. An egregious violation of public trust.

But are we really willing to say the UK Museums Association is repulsive?

Or might it be the case that this is a difficult issue and reasonable people (or reasonable museum associations) might have different views as to what is or isn't appropriate?

But here we have a natural experiment: the UK has allowed operating expense deaccessioning since 2007, and what's the verdict?

"The world hasn’t come to an end." Thousands of artworks haven't been sold off. There are still one or two left.

It's worth keeping an eye on.

2. The other thing worth mentioning is that one of the proposals floating around out there is "to create an expert panel that would review proposed deaccessions." Judith Dobrzynski made a similar proposal not too long ago.

The WSJ's "Bankruptcy Beat" has the details. The artwork appears to be safe:

"San Francisco owns the ... collection of more than 17,000 pieces of art .... As a result, such assets would be exempted from a bankruptcy filing by the museum foundation. The museum foundation owns minor assets as well as $70 million in endowment money."

Tuesday, November 23, 2010

Monday, November 22, 2010

More on how New York's version of UPMIFA is more donor-favorable than most other states':

"In most enactments of UPMIFA, all existing donor-restricted endowments become subject to the new requirements enabling spending below [historic dollar value]. This is not the case under NYPMIFA. Each organization is required by the law to give notice to prior donors giving them the option of applying the new law. Once the donor has responded, or the donor’s right to respond has lapsed (after 90 days), the organization will need to maintain records of which endowments follow the new law, which have HDV restrictions under the old law, and which have specific donor restrictions. The notice to donors must follow specific requirements set out in the law."

Friday, November 19, 2010

The New York Board of Regents is establishing "a small ad hoc committee of leaders of museums" to help produce a set of deaccessioning regulations "compatible with the accepted ethical and legal standards of the national accrediting organizations."

Those accepted ethical standards were summarized here by the NYT -- under "the code of ethics of the American Association of Museums, the proceeds should be 'used only for the acquisition, preservation, protection or care of collections,'" while the "code of the Association of Art Museum Directors is even stricter, specifying that funds should not be used 'for purposes other than acquisitions of works of art for the collection'" -- and, as I'vesaidbefore, it seems to me the current Board of Regents regulations are alreadyfully "compatible" with those standards. But let's see what the small ad hoc committee comes up with.

Interesting sounding show at MCA Denver: Orphan Paintings: Unauthenticated Art of the Russian Avant-Garde:"Orphan Paintings explores questions about the status of art. What is an authentic art experience? What precisely are we appreciating when we look at a work of art? Are we appreciating what is visible to us, or is it a range of invisible factors, such as the belief that it was made by a master artist or the opinion of experts about its authenticity? This collection of unauthenticated Russian avant-garde paintings asks: can an art experience be authentic even if the status of the work of art remains questionable? Are there other forms of authenticity aside from its attribution to an artist?"Thanks to a loyal Art Law Blog reader for the tip.

Wednesday, November 17, 2010

Artist and NYU professor Wafaa Bilal is having a camera surgically implanted in the back of his head for several months for an art project. Kate Taylor's NYT story is here. More from the WSJ's Erica Orden here. Jonathan Turley notes a legal issue that has arisen: "Does he need the consent of students in class who will be captured by his head camera? As a result of objections, Bilal has agreed to cover the camera with a black lens cap while on university property."

Tuesday, November 16, 2010

Lee Rosenbaum issues "a major correction" regarding the transfer of the Brooklyn Museum's costume collection to the Met a couple of years ago. I wrote about the deal here. (See also here.)

Perhaps it wasn't what it initially seemed, but so long as any sales proceeds aren't used for operating expenses, it shouldn't be controversial under the Standard View on deaccessioning.

From my point of view, it's just another example of how the hypocrisy built into that Standard View -- sales to buy more art, totally fine; sales for any other reason, repulsive -- leads people to do a lot of funny things.

Monday, November 15, 2010

The New York Law Journal reports (but I can't find a free link at the moment) that the Warhol Foundation antitrust litigation is over. The plaintiffs drop their claims against the Foundation, and the Foundation drops its counterclaims and request for sanctions. Background here.

The NYT's Kate Taylor reports that the Simpson-Bowles deficit reduction proposal includes a recommendation that the Smithsonian begin charging admission fees. More here from DCist.

Matthew Yglesias says it's "a great example of a kind of pennywise and pound-foolish thinking about spending that often afflicts the political system":

"What you would ideally do with these kind of public services—be it a museum or a subway or whatever—is take a good hard look at whether or not you really believe in providing the service. And if you do, you provide it for free so that as many people as possible can benefit."

USA Today reports. One of the issues is "the uncertain outlook for the estate tax." The article notes that "a 2004 study by the Congressional Budget Office estimated that permanent repeal of the estate tax would reduce donations to charity by up to 12%."

Dealer Ed Winkleman's "first response was to agree with the dealers who noted that it seemed a bit unnecessary," but news reports of a recently-discovered forgery ring have him rethinking that view. I'm pretty sure, however, that ARIS doesn'tcover forgery claims. See here.

"For those upset by the fact that Fisk runs an almost $2 million annual budget deficit, he pointed out that the deficit has improved — it topped $10 million in 2006. He also noted that the school's debt has dropped by $1.4 million.

"For those who criticize O'Leary's fundraising skills — she has raised $26 million for the university in six years — he said the $4.3 million she raises each year is better than the national average for historically black colleges."

Monday, November 08, 2010

The Charity Governance Blog's Jack Siegel is not impressed with Judge Lyle's latest ruling in the Fisk case: "[T]he reader sees a judge’s heavy hand at work unsupported by the law or facts. Toto has pulled the curtain back and we see that the Wizard of Oz is just a mere mortal." He calls the decision "a compromise that achieves less than nothing. She should have just made the hard choice. Give Fisk the money or give the collection to the Frist Center." And though the decision notes that "the case is in its last phase," he "suspect[s] the appeals court will take a new approach, resulting in a remand with instructions and an entirely new round of proceedings."

Cristina del Rivero isn't a fan of the decision either: "The problem of donor intent is a recurring theme in this kind of litigation but this week's ruling apportioning actual percentages between the donor's intended beneficiaries is pure guess work."

Friday, November 05, 2010

Vanity Fair has a long article on the controversy involving the films Larry Rivers made of his adolesencent daughters in the 1970s. Kate Taylor wrote about it in the New York Times this summer.

One of the daughters wants the films turned over to her: "Emma declares her father guilty of nothing less than child pornography." The Rivers Foundation is refusing: ["They say] the film must be preserved, both as source material for a large Rivers painting of 1981, which incorporates still images from the movie, and as art in itself."

The article also notes that Emma has given a copy of the material "to an assistant Manhattan district attorney, Emily Logue. According to Emma, Logue has viewed it with alarm and is considering confiscating all copies as obscene material. (Logue would not comment on what the D.A.’s office considers an open investigation.)"

Thursday, November 04, 2010

Judge Lyle issues what Lee Rosenbaum calls her "latest astonishing" ruling in the Fisk case: she will let the Crystal Bridges deal go through, but Fisk can keep only $10 million of the sales proceeds. The other $20 million has to go into an endowment fund outside of Fisk's control, to ensure that, even if Fisk were to someday close, the collection could remain (partially) in Nashville. The ruling is here. Robin Pogrebin's New York Times story is here. The Nashville Tennessean story -- "Fisk art ruling upsets both sides" -- is here.

Why the 10/20 split? Because "allocating Fisk $30 million from the sale ... is out of proportion to the role Ms. O'Keeffe designed for Fisk." I'm not sure what that means. Was the "role" O'Keeffe "designed" for Fisk equal to one-third of the, um, total "roles" involved in the gift? Or that helping Fisk was (exactly) half as important to O'Keeffe (as measured by the old intent-o-meter) as making sure the work never left Nashville? It seems a little arbitrary to me.

Lee calls it a "lose-lose decision" and calls on the AAMD to punish Crystal Bridges (because collection sharing among museums is, of course, verboten). She also refers to "some additional Walton largesse [that] may be in offing" -- i.e., an agreement to fund a $1 million endowment to care for the collection -- but I believe that was always part of the deal. See, e.g., this 2007 NYT article noting that Walton "also pledged $1 million to renovate and maintain the Fisk gallery that houses the collection and to finance an art internship."

"I just do not see the injustice [in the Crystal Bridges transaction]. A financially troubled and storied institution, whom O'Keeffe wanted to support decades ago, can receive a much-needed benefit with the partial sale of works of art that can be better preserved and seen by a wider audience."

Wednesday, November 03, 2010

Sergio Muñoz Sarmiento flags news that "a photographer has sued Texas alleging a cowboy image on millions of vehicle inspection stickers is being used without his permission." The first hurdle, of course, is sovereign immunity.

"Donn, you’re right about sovereign immunity – if the state chooses to assert the defense. Not very good optics, though, and the state might well decide to settle quietly rather than claim it is above the law that applies to everybody else. Especially at a time when ‘elitism’ has such a bad name, and the state taking someone’s property would play into a very visceral narrative. That’s why you don't see too many flagrant abuses like university labs selling patented drugs, etc. I think it's largely because it just looks bad. There are circumstances, though, like some of the libraries digitizing their books in connection with the Google project, in which the stakes might be high enough to make it worth a little bad citizenship."

Tuesday, November 02, 2010

The Maine Antique Digest has a story on the expiration of the "emergency" deaccessioning regulations in New York. You have to slog through lots of sky-is-falling spin, until, finally, in the next to last paragraph, there is this, from Clifford Siegfried, deputy chancellor at the board of regents:

"[Much of what has been written is] just absolutely wrong. The initial stories were all saying that museums could start selling and use their art for operating expenses. That is not true at all. What happened was that the emergency regulations which we had for two years are no longer in effect. But all they did was try to clarify some of the rationale, the reasons, for deaccessioning. The prohibition of deaccessioning for using funds for operating expenses is still in place. That didn't change" (emphasis added).

As I've said before, that is exactly right. There is no ambiguity about this.

Monday, November 01, 2010

Terry Hart looks at the subset of recommendations in the Copyright Principles Project report (mentioned earlier here) that "call for an increased role for the US Copyright Office within copyright law."

"I admire Dr. Barnes’s original intent. He wanted to bring modern art to the masses by putting his money where the mouth of aesthetic and educational philosopher John Dewey was. Somewhere along the way, however, that democratic ideal became lost in a web of visitor restrictions and zoning laws that threatened to bury the foundation alive. ... The new location will copy much of the bucolic nature of the original setting with the advantage of bringing the art to the people—all the people. Again, that’s what seems to be bothering those who continue to object to the move."

Tuesday, October 26, 2010

The Foundation's attorneys issued a statement today which closed as follows:

"The resources Mr. Simon forced the Foundation to expend litigating against these meritless claims would have otherwise gone to funding its charitable mission of promoting the visual arts and preserving the legacy of Andy Warhol. While Mr. Simon may now prefer not to face Defendants’ legitimate counterclaims, the Warhol Foundation is fully committed to pursuing all its legal rights and claims against Mr. Simon to recover the funds it has been forced to waste and give them back to the charitable causes to which they always belonged."

Monday, October 25, 2010

The chess match between the judge in the Fisk case and the Tennessee Attorney General continues. The AG has now submitted a new proposal that "clearly would most closely approximate Ms. O'Keeffe's intent," namely the establishment of a fund that has already "received commitments" that would ensure a permanent endowment "sufficient to generate the proceeds needed to pay the costs of keeping the Collection full-time at Fisk." The brief from which those quotes are taken is here. A second, related brief (opposing the revised Crystal Bridges deal) is here. AP story here.

I've long given up trying to predict how Judge Lyle will rule in this case, but I doubt this latest plan will fly with her. In her ruling rejecting the AG's last plan (for a relocation of the Collection to the Frist Center until Fisk's financial situation had improved), she said: "It would not be in keeping ... with the donor's intent to keep the Collection in Nashville at the cost of sacrificing the existence of Fisk University" (my emphasis). The new proposal relieves Fisk of the approximately $130,000 a year that it takes to maintain the Collection, but it does nothing to help with Fisk's larger financial problems. (She found that it was "on the brink of closing.") I suspect it will be rejected.

UPDATE: Fisk issues a statement opposing the plan, on the grounds I mentioned in the main post: it "does not address Fisk's fundamental financial challenge which is that without a large infusion of cash Fisk cannot continue to operate." It's "another scheme which fails to address Fisk’s survival," and "the Court has already ruled that any proposal must address Fisk University’s overall financial health." They even quote the line I emphasized above ("It would not be in keeping ...").

UPDATE 2: The NYT's Robin Pogrebin has a brief story on the development here.

Thursday, October 21, 2010

The Wall Street Journal had an interesting piece today on the design of the new Barnes building, and the architects' efforts to ensure that "the Philadelphia gallery would replicate the Merion layout, and that Barnes's distinctive ensembles, which juxtapose Old Masters with Impressionists, and African masks, Pennsylvania Dutch furniture, ceramics, hardware and other objects with paintings, would remain unchanged."

And coincidentally, a great quote from MoMA director Glenn Lowry showed up on Judith Dobrzynski's blog this afternoon. He says: "For any museum to thrive, it needs to grow and change and constantly rethink itself."

On the flip side, some people get upset when a painting is moved from a stairwell to, get this, its own room. Philistines! How could they?! Very "alarming." No growth, no change, no re-thinking allowed. Everything is perfect exactly as it is.

The Chelsea Art Museum is in danger of closing. The Wall Street Journal reports:

"In August, [the museum's director] said she had pledged the museum's entire collection as collateral for a ... loan to make an interest payment on the mortgage. That move appears to violate regulations of the state Department of Education's Board of Regents, which supervises and grants charters to museums. The department has been gathering information about the museum's actions for review."

The Guardian reports that "panic is spreading through the art world following the discovery of forgeries among major 20th-century paintings sold in recent years by leading auctioneers and dealers worldwide, including Christie's in London."

Art Theft Central: "Unfortunately, this art forgery case underscores the need for art connoisseurship and authentication to utilize the current scientific technologies to confirm a work's provenance and history. Otherwise, buyers and sellers as well as art experts and historians will continue to play what can at times be comparable to a game of Russian roulette."

WNYC did a piece on the suspension of sanctions against the National Academy Museum (mentioned yesterday here). They talk to Lee Rosenbaum (who says "museum quality works are the public's patrimony"), Sergio Muñoz Sarmiento (who points out that one of the things we're talking about when we talk about the dreaded "operating expenses" is people's livelihoods), and Kaywin Feldman, president of the AAMD. Feldman's statement is, as AAMD pronouncements on this subject always are, amusingly self-contradictory: She says it's "common" for museums to deaccession for "a whole variety of reasons," but that museum works "are not fungible assets." Huh? If they are not fungible assets, then how can it be common to sell them? Similarly, she says it's "a very core principle" (not just a core principle, but a very core principle) that museums "conserve" their works "in trust for our community" -- but again: if that's the case, then how in the world can they be commonly sold, for a whole variety of reasons?

Wednesday, October 20, 2010

I've been distracted the last couple of days by some important -- though, as it turned out, utterlydepressing -- business up in the Bronx. So I'm late getting to the news that the terrible, horrible, no good, very bad (not to mention repulsive and Stalinist) National Academy Museum, having been duly punished, and having publicly repented for its sins ("Never again," says the museum's director), has had the sanctions against it lifted by the AAMD. "On Oct. 4 the [AAMD's] board voted unanimously to suspend its sanctions in recognition of the academy’s actions over the last 20 months toward better financial planning and management."

Its horrible sin, you may recall, was selling a couple of works (they still have 7,000 others!), to keep from having to close its doors. The scoundrels!

This was a horrible sin because, although it may seem that museums own the works of art in their collections, the works are actually "held in trust" for the public and so cannot be sold under any circumstances. Never never never. Unless of course the museum wants to use the proceeds to acquire other, different works of art, or even just put them in an account labeled Acquisition Fund and let them sit there, in which case the discarded works are somehow no longer held in the public trust -- go mind your own damn business, public! -- and can be freely sold. It's a funny kind of public trust, you see. Don't ask so many questions. Move along or we will sanction you.

Judith Dobrzynski thinks the outcome is "fair," but reiterates her (repulsive Stalinist) view that "there ought to be a process through which museums in true danger of closing, which have exhausted all other possibilities, might petition a state attorney general or an AAMD-sanctioned arbiter or some other adjudicator for permission to deaccession some works to raise money to remain open." The Art Market Monitor notes the New York Times's "odd obsession with the State legislature’s attempts to make law out of the [AAMD's] sanctions against selling works for operating expenses," and says the National Academy "is now only on double secret probation."

Monday, October 18, 2010

The Philadelphia Inquirer's Stephan Salisbury tells us that construction of the new Barnes museum is "proceeding at a rapid clip."

I always appreciate his non-melodramatic way of describing the move:

"Wealthy collector Albert C. Barnes installed the work in the Merion gallery almost a century ago and stipulated that it could not be moved. But the Merion gallery was sinking into penury in the 1990s and the board of directors eventually saw no way of continuing as an independent institution if a move did not take place. Many former students of the Barnes ... opposed any move, as did numerous denizens of the art world and Merion residents. But Montgomery County Orphan's Court finally approved the plan in 2004."

Sinking into penury . . . board decided a move was necessary . . . many opposed . . . Court approval. That's one way to say what happened. On the other hand: Theft!!! Conspiracy!!! Eleventy!!$!?!

Friday, October 15, 2010

Merryl Tisch, the chancellor of the New York Board of Regents, was on the Brian Lehrer show last week, trying to clear up the confusion around the expiration of the Regents' "emergency regulations," which press reports are incorrectly characterizing as now allowing museums to use sales proceeds to cover operating expenses. (The show's site, in describing her segment, says she "talks about the Board of Regents' decision to allow the ban on 'deaccessioning' ... to expire today, in order to help museums to cover their operating expenses.") Tisch says, at around the four minute mark:

"The emergency regulation is what is expiring on October 8, reverting back to the old regulation. And in that old regulation, there is a clear prohibition against selling art for any reason other than to acquire, to preserve, or to protect your collection. And that will absolutely be in place, that does not change."

A nice review for Noah Charney's "Stealing the Mystic Lamb" in the Cleveland Plain Dealer: "Well-written and thorough, this book reminds us of the influence and fragility of art, our veniality and heroism, and the delights found in both the beautiful and the strange."

UPDATE: And here's an interview with Charney on the Leonard Lopate show.

Wednesday, October 13, 2010

I'm a bit late getting to this, but Fisk has submitted a revised version of its agreement with the Crystal Bridges Museum, to address some concerns the court had with an earlier version. As the NYT reports, "the university, which has longstanding financial difficulties, is seeking to share ownership of the collection with [Crystal Bridges]."

Fisk president Hazel O'Leary is quoted as saying: "In the 21st century, museums have adopted the practice of sharing artwork to reduce the cost of acquisition and to ensure that a broader segment of the population can view and study collections."

You can read Fisk's latest court filing here. On the Tennessee Attorney General's proposal (that the collection be given to Nashville's Frist Center), it says:

"[The AG's proposal] would guarantee only one thing: that the Collection would never again be displayed at Fisk. This would contravene the one aspect of O'Keeffe's intent that no party can dispute: that O'Keeffe chose Fisk to display the Collection. There is only one proposal on the table that provides for Fisk to continue to display the Collection. In fashioning cy pres relief, Fisk asks the Court to consider the stark difference between 50% of the time and never again" (my emphasis).

I made a similar point here. How anyone can be certain (to the point of being, as usual, outrageously outraged) that the AG plan is closer to O'Keeffe's intent than the Crystal Bridges sharing arrangement is, is beyond me. Consider the stark difference between 50% of the time and never again.

Finally, the AAMD jumps into the fray, with a letter to Fisk that seems to miss the point entirely. The letter is filled with the usual cliches about the public trust and works of art not being "fungible assets" (except when they are sold to raise money to buy more art, when they magically become the very definition of fungible assets!) and on and on. They "sympathize" with the financial "challenges" Fisk faces (recall that the court recently found that Fisk was "on the brink of closing" -- I guess you could call that a "challenge"), but they have come to inform us that the collection's "greatest value is as a tool for learning and teaching." Ah, so that's its greatest value. I bet Hazel O'Leary and the others at Fisk had never thought of that. So good that the AAMD roused itself, after five years of litigation, to clear that up. I'm sure Fisk will withdraw the lawsuit and call the whole thing off straight away.

While we wait for that to happen, I have the following question. If the collection's greatest value is as a tool for learning and teaching, why can't that value be realized at Crystal Bridges (or more precisely: half the time at Crystal Bridges and half the time at Fisk)? Won't there actually be morelearning and teaching going on under the proposed sharing arrangement than there is now? Doesn't the Crystal Bridges plan greatly increase the number of people who can learn from the collection?

And what about the $30 million Fisk will receive? How much learning and teaching will that support? Does that not factor in at all?

"Berlin-based artist Tino Sehgal has evidently turned collecting criteria on their heads. He sells his performance art pieces by means of verbal transactions in the presence of a lawyer with no written contract. Instructions on how to re-enact his works are delivered literally by word-of-mouth, with collectors under strict orders never to photograph or video his 'constructed situations'. Yet they sell in editions of four to six for $85,000 to $145,000 each, according to The Art Newspaper."

"Eleven employees of Egypt’s cultural ministry were sentenced to three years in prison for negligence that led to the theft of a valuable van Gogh painting from a Giza museum in August, Reuters reported. Among those employees whose sentences were announced Tuesday was Mohsen Shaalan, a deputy culture minister who heads the fine arts division of the ministry."

Tuesday, October 12, 2010

The NYT's Randy Kennedy reports on a California art foundation that plans to support its activities through the sale of (medical) marijuana. The Nonprofit Law Prof Blog notes that the "article mentions drug-crime concerns as a possible problem, but does not talk about whether the pot-growing operation will generate unrelated business taxable income" (on which see here).

Monday, October 11, 2010

I mentioned last week the story of a woman who was arrested for destroying an artwork at a Colorado museum "that some observers say depicts Jesus engaged in a sex act."

Now comes news that the museum will not re-hang the work, citing safety concerns. Eugene Volokh is disappointed -- "behavior that is rewarded is repeated, and I would hope that museums would see the costs of providing further encouragement to those who would vandalize museums (or for that matter threaten to vandalize them) -- and adds this bit of constitutional commentary:

"[T]he Establishment Clause doesn’t prohibit the display of allegedly blasphemous or antireligious works in government museums, just like it doesn’t prohibit the display of pro-religious works in government museums. See, e.g., the various opinions’ mentions of museums in County of Allegheny v. ACLU (as well as Justice O’Connor’s dissent in Van Orden v. Texas). An entire government museum devoted to Christian painting or to anti-Christian blasphemy might violate the Establishment Clause 'endorsement test' (which still seems to be part of the law). But occasional artworks in such museums would not be seen as sending a message of government endorsement of religion."

Tuesday, October 05, 2010

A few weeks ago, I mentioned a New York Times article that misleadingly suggested that the expiration of New York's "emergency" deaccessioning regulations would allow museums "to sell art to cover operating costs." As I said then: "The expiration of the emergency regulations just means that we go back to the existing, non-emergency regulations, which also prohibit the sale of art to cover operating expenses."

The Times is back today, ratcheting up the confusion, with a story on the front page of the Arts section headlined "Criticism Flies After State Eases Ban on Art Sales." It begins: "When the New York State Board of Regents met last month to consider making permanent a set of temporary regulations that bar the sale of artwork by museums to cover expenses, approval was widely considered a fait accompli." And it goes on to give the distinct impression that, by letting the regulations expire, "such sales" -- i.e., sales "to cover expenses" -- are now allowed.

Again: that is not true.

The existing rules will still prohibit art sales to cover operating expenses.

You know how I know that?

I read it in the New York Times.

In the same article, but on the jump page, in the twenty-first paragraph (of a 24-paragraph story), we are finally told the following:

"In the absence of the regulations the Regents policy will revert back to a set of guidelines on the books since 1971 and amended in 1998 to address collections management, including deaccessioning. While the guidelines prohibit the use of proceeds from art sales for operating expenses . . . ."

Let me stop there for a moment. We are going back to guidelines that have been in place since 1971. Those guidelines PROHIBIT THE USE OF PROCEEDS FROM ART SALES FOR OPERATING EXPENSES.

I think it's probably safe to conclude, based on that, that proceeds from art sales may not be used for operating expenses. Wouldn't you?

So what is going on here? What is the source of the concern? What justifies two major stories on this in the New York Times in the span of three weeks? Let's go back to paragraph 21 again:

"While the guidelines prohibit the use of proceeds from art sales for operating expenses, they also require that such sales be consistent with an institution’s 'corporate purposes and mission statement.' This leaves open the possibility, critics said, that museums could amend their mission statements to suit their deaccessioning interests or argue that selling artworks fit within their 'corporate purposes.'"

I dealt with this supposed "loophole," which "critics say" opens the possibility for sales to cover operating expenses, here. There is no such loophole. Look at the very language of the Times article: the guidelines prohibit use of sales proceeds for operating expenses and they also must be consistent with the museum's mission statement. Get it? It's a two-part test. If you want to sell art,

(1) you can't use the proceeds for operating expenses

AND(2) the sale must be consistent with your mission statement.

You can change your mission statement all you want -- yet that only helps with condition (2). No matter what, you still can't use the proceeds for operating expenses.

Monday, October 04, 2010

The Cherry Hill Courier Post has more on the tragic deaccessioning of The Gross Clinic: "Dr. Warren V. Harrer of Haddonfield, ... a Jefferson alumnus, admitted that he was 'initially sad since "The Gross Clinic" has been an integral part of Jefferson lore.'"

But now he is "delighted that the painting is taken care of and seen by a much larger audience."

What's more, "he is pleased that the University is using the funds to generate medical education."

The "Zaretskians" on the LA MOCA board seem to have gotten their act together: "The Museum of Contemporary Art announced Thursday that it finished its fiscal year with a $5.5-million surplus and has used most of it to continue replenishing the endowment it had illegally raided during nearly a decade of overspending. . . . The decision to put $4 million of the surplus into the endowment brings the fund to $18.5 million, less than two years after the museum's meltdown, coupled with the 2008 stock market collapse, had reduced it to $5 million."

The Chronicle of Higher Ed: "The college paid Ms. Wallace’s current husband, Glenn E. Wallace, $289,235 in 2008 for his role as senior vice president for college resources. Also on the payroll was her son John Paul Rowan ($233,843 for consulting; he is now a vice president who oversees the college’s Hong Kong campus), daughter Marisa Rowan ($101,493; director of the equestrian programs), daughter-in-law Elizabeth Rowan ($85,494; director of external relations at the Hong Kong campus), and mother, May L. Poetter, a member of the Board of Trustees, who earned $61,767 in consulting fees."

Wednesday, September 29, 2010

Two new exhibits open at the Rose next week. Of course the Rose is not a real museum because Brandeis once considered selling some of its work and now they are exploring loaning out some of the collection for profit. When you do that, you are no longer a museum. Right?

Monday, September 27, 2010

Lee Rosenbaum frets that New York's adoption of UPMIFA encourages "disregard of donor intent," but as the folks at Nixon Peabody point out, "New York's statute is more donor-favorable than perhaps any in the nation, with special notice requirements on court-ordered and other modifications of restrictions, and donor consent to the release or modification of certain restrictions contained in a gift instrument. Charities are advised to be aware of this new, expanded role for donors in the life of their institutions" (my emphases).

NYT: "Egypt’s minister of the interior told the official MENA news agency that a museum employee was most likely responsible for the theft of a valuable van Gogh painting from a museum in Giza last month."

Derek Fincham: "This may explain why there was such a strong reaction to the arrest and a crack down on the museum's own staff and security personnel, or it may be an attempt to find a scapegoat."

New York Times "Wealth Matters" columnist Paul Sullivan had a piece on buying art this weekend. It's mostly common sense stuff (it's "not always the case" that art increases in value), but Aris title insurance makes an appearance. Sullivan says they charge a "one-time premium" ranging "from 1 to 5 percent of the value," then adds:

"The reality, though, is that title insurance is still not broadly accepted. 'It hasn’t been purchased on a widespread basis,' said Paul Funk, executive managing director at Frank Crystal & Company, an insurance brokerage."

Wednesday, September 22, 2010

I wanted to address a point Assemblyman Brodsky made to Lee Rosenbaum regarding the expiration of the Board of Regents' "emergency" rules on deaccessioning:

"Another loophole, Brodsky asserted to me after he read this post, is that the old regs (under Paragraph 6-ii) did permit the use sale proceeds for operating expenses, if the institution first changed its corporate purpose so as not to include collecting the type of material to be sold."

He says "this had been cured" in the now expiring amendment to the regulations.

First of all: really? This is what we're worried about now? That museums are going to play games with their corporate purposes so they can dump their collections? Those devious museums, you never know what they'll do in their relentless drive to rid themselves of their art.

But second, I don't see the loophole at all. Take a look at the existing rules. The part about the corporate purpose is in Paragraph 6(ii). But look at Paragraph 6(vi). It says the institution shall "ensure that proceeds derived from the deaccessioning of any property from the institution's collection be restricted in a separate fund" and "in no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses." That's true no matter what your corporate purpose is. So where's the loophole?

Geoff Edgers reports that "Brandeis University is launching a search for a new director at the Rose Art Museum, the latest step in an effort to move on from last year’s controversy over the campus museum."

He also says "Rose boosters" who are suing the university are "not impressed." One of them is quoted as objecting to the fact that Brandeis University's search committee for Brandeis University's art museum is made up of Brandeis University employees. Go figure.

The Tennessee General has filed a Motion to Clarify the Court's latest ruling in the Fisk case. You can read the motion here. The subtext is: "Excuse me, Your Honor, am I crazy or did you just change your mind completely?"

As I explained last week, Judge Lyle ruled last month that, since O'Keeffe's intent in making the gift was to make the collection available to the people of Nashville and the South, the interests of Fisk were irrelevant, and she therefore invited the Attorney General to come up with a plan to keep the collection in Nashville.

She's now rejected that plan, ostensibly because it wasn't "permanent" enough (it provided for the works to go to Nashville's Frist Center for the Visual Arts, but left open the possibility of their return to Fisk in the event it some day gets its financial house in order), but it was clear from the opinion that the real reason for the decision was that she had changed her mind about the relevance of Fisk's interests: "It would not be in keeping ... with the donor's intent," she wrote, "to keep the Collection in Nashville at the cost of sacrificing the existence of Fisk."

The AG's current motion argues against the stated reason for the decision:

"The Court in its ruling earlier this week rejected the Attorney General's proposal as a 'short-term solution' and a 'temporary fix.' The Attorney General would like to correct that apparent miscommunication. There is nothing 'short-term' or 'temporary' about the plan. It provides an appropriately funded and structured mechanism to support the full-time display and maintenance of the Stieglitz Collection in Nashville into the indefinite future. The only 'temporary' element of the arrangement is the appropriate suggestion that Fisk University should be able to resume custody and display of the art when it has the financial ability to do so. This does not make the proposal a temporary fix; rather, it recognizes Fisk's historic connection with the art and allows the proposal to adhere even more closely to Ms. O'Keeffe's charitable intent."

(Lee Rosenbaum made a similar argument last week: "To my mind, the flaw in the court's logic is that the AG's plan WOULD keep the collection in Nashville full-time. The only thing temporary about the arrangement would be the artworks' sojourn at the Frist, which would display and maintain the collection until Fisk could resume custodianship.")

But, again, the real issue is that somewhere in between the decision asking the AG to submit his Nashville-only plan and the decision rejecting that plan, Judge Lyle seems to have become convinced that the interests of Fisk do matter. Once you grant that, then the AG's proposal -- which runs the risk of "sacrificing the existence of Fisk University" -- isn't going to be good enough, whether or not you see it as "temporary."

Thursday, September 16, 2010

AAM president Ford Bell is under the mistaken impression that the NY Board of Regents has decided to "permit museums to sell objects in their collections to cover operating costs."

As I explained yesterday, that's not true at all. The existing Board of Regents regulations (which will continue to govern after the emergency regulations expire) provide:

"In no event shall proceeds derived from the deaccessioning of any property from the collection be used for operating expenses or for any purposes other than the acquisition, preservation, protection or care of collections."

That happens to be exactly the same as the AAM's position on deaccessioning. Bell needn't be alarmed.

Wednesday, September 15, 2010

I had a chance to read Judge Lyle's decision rejecting the AG's plan for the Fisk art, and what it comes down to is she seems to have remembered that the gift to Fisk may have been intended to benefit Fisk.

Recall that, in her prior decision, she said the Court of Appeals "made no finding of a dual intention by Mrs. O'Keeffe that includes perpetuating the existence of Fisk." Her intent was solely to "enable the public -- in Nashville and the South -- to have the opportunity to study the Collection in order to promote the general study of art."

As I said at the time, this made no sense: "In other words, the intent behind the gift to Fisk was not to benefit Fisk; it was simply -- and only -- to make the Collection available to the public in Nashville and the (true) South."

Judge Lyle now seems to agree. The new decision says "one could argue that by saying the donor's intent was to enable Nashville to have access to the Collection, the Court of Appeals implicitly ruled that was the donor's exclusive intention. By not mentioning Fisk, the Court of Appeals' decision could be read to imply that Fisk, the institution, should not be considered in a plan for the Collection. The Court rejects that argument." She notes that the Collection was placed "deliberate[ly]" with Fisk: O'Keeffe's "connection to Nashville" was Fisk. "It would not be in keeping, then, with the donor's intent to keep the Collection in Nashville at the cost of sacrificing the existence of Fisk University." When O'Keeffe made her gift, "Fisk was not on the brink of closing." "Having the Collection in Nashville only half of the time and reducing Fisk's ownership to a half is not a perfect solution but it does keep Fisk afloat, thereby maintaining and holding true to the law's recognition of the donor's deliberate selection of Fisk for the art."

I think there was a lot of confusion out there today about the news that the New York State Board of Regents is going to let its "emergency" deaccessioning regulations expire. The New York Times headline was "Board of Regents Ending Injunction Against Museums' Art Sales." It called the move a "surprise development in the battle over whether museums should be allowed to sell art to cover operating costs." The Wall Street Journal's headline was "Museums Can Sell Off Art Again" and its lead was: "The state will allow emergency regulations that prohibited cash-strapped museums from selling their artworks to cover expenses to expire" -- clearly implying that now cash-strapped museums can sell art "to cover expenses." Artinfo.com reported that the Regents made the "surprise decision" to let the rules "prohibiting the practice" of "sell[ing] art to cover operating expenses" -- "long considered sacrosanct" -- expire. And Assemblyman Brodsky -- of the defunct Brodsky Bill -- was quoted as saying "this is the precursor of the massive transfer of art held in the public trust into private hands."

I think they have it all wrong. The expiration of the emergency regulations just means that we go back to the existing, non-emergency regulations, which also prohibit the sale of art to cover operating expenses. The existing rules -- which apply to all museums chartered after 1889 -- essentially make the AAMD/AAM deaccessioning rules the law of New York State. The emergency regulations were even stricter, but if you're okay with the AAMD rule, you should be fine with the current regulations. Museums still won't be able to use sales proceeds for operating expenses. The Deaccession Police can rest easy.

Tuesday, September 14, 2010

The Judge has rejected the Attorney General's plan for the Fisk artworks: "The best the attorney general has been able to do is to propose a short-term solution. A temporary fix, however, is insufficient, the court concludes. The parties have been in court long enough. Finality and certainty is needed."

Incredible.

Remember: in her ruling last month, Judge Lyle asked the AG to propose "a sharing arrangement in Nashville or ... an institution in Nashville capable and willing to permanently house and maintain the Collection to replace Fisk." He seemed to have done that: the work would stay in Nashville, at the Frist Center for the Visual Arts . But, in an apparent effort to be fair to Fisk, he included a proviso that, if Fisk manages to fix its financial situation, they could have the works back. But now it seems that that proviso ruined the proposal by making it insufficiently final! (So why not just drop the proviso and say the works go to the Frist Center -- finally and permanently?)